Drops in the Ocean: The Hidden Power of Rights-Based Climate Change Litigation

46 Pages Posted: 15 May 2024

See all articles by Craig Martin

Craig Martin

Washburn University - School of Law

Date Written: May 10, 2024

Abstract

An increasing number of legal challenges to government climate change policies are being advanced on the basis that states are violating the human rights or constitutional rights of applicants. A number of high-profile cases in Europe have upheld such claims and ordered governments to adjust their policies. But questions remain regarding how effective such rights-based cases may be in the effort to enforce climate change law obligations or encourage government responses to the crisis. This Article explores how such rights-based cases may exercise greater influence than is typically understood.

After explaining briefly the relevant human rights and climate change law, this Article examines in some detail a sample of rights-based climate cases that reflect a common pattern of features that provide the basis for such an explanation. The cases illustrate the incorporation of both international human rights law norms, and international climate change law obligations and standards, which are used to assess the legitimacy of government climate change policy. The courts increasingly rely upon the science of climate change institutions and the arguments and doctrines developed by foreign courts and international tribunals, including new doctrines for rejecting typical “drop in the ocean” causation and justiciability arguments traditionally relied upon to dismiss climate change cases.

The features of the common pattern reflected in these cases conform neatly with a number of well-established theories in international and comparative constitutional law, which in turn provide insight into how these cases may exercise powerful indirect influence. These theories help explain how the incorporation and internalization of international law norms, along with the migration of ideas from abroad, help shape national policy and form powerful pre-commitment devices. They also show how judicial decisions contribute to that process, and how courts help shape public perceptions and opinions regarding the validity of government policy. Viewed through the lens of these theories, the features of these cases suggest that they exercise greater influence than is generally understood.

Keywords: climate change, international human rights, constitutional rights, litigation, comparative law, international law, judicial review

JEL Classification: k33, k32, k41

Suggested Citation

Martin, Craig, Drops in the Ocean: The Hidden Power of Rights-Based Climate Change Litigation (May 10, 2024). Case Western Reserve Journal of International Law, Vol. 56, No. 1 & 2, 2024, Available at SSRN: https://ssrn.com/abstract=4825587

Craig Martin (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

HOME PAGE: http://washburnlaw.edu/faculty/martin-craig.php

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